‘New laws drafted by part-timers… When has a major law been passed without reference to Law Commission?’: P Chidambaram

Several states have raised concerns about the title of the laws being in Hindi and the lack of its translation in regional languages.

We have no objection to a Hindi name, but put it in the Hindi version. In the English version, why do you put a Hindi name? This will be required to be translated into all languages… because that is the language of the court. How do we translate this? For example… will we call it ‘India Kutra Chattam’ or ‘Bharatiya Nyaya Sanhita’? I don’t know.

In the Hindi version, keep a Hindi name. In the English version, keep an English name. Would you put a Kannada name for a Tamil version?

Your main criticism of the new laws is that they were not necessary.

You should not make changes which are not required. You should only make changes which are necessary. The law must have stability… which means not only the substance of the law, but the manner in which it is presented to the world by Parliament.

For example, the Criminal Procedure Code (CrPC) was completely rewritten in 1973. Alright, 50 years later you rewrite it, I have no problem. But you have copied it. The IPC, CrPC, everything. You have copied it. And I am willing to demonstrate and to challenge anyone to prove that I am wrong. 90-95% of the IPC is copied; 95% of the CrPC is copied.

What according to you are some of the changes that could have been made?

It is a sleight of hand. For example, sedition should have been scrapped. The change (new law) has the same effect. Death penalty should have been dropped. On the contrary, they have introduced another unusual punishment called solitary confinement. Community service should have been defined. See, each judge will now define what is community service. For example, the Pune minor (accused of running over two people driving a Porsche)… they asked him to write an essay. Is that community service?

So, you should have defined community service. Especially in a country which is so large and has so many courts and different concepts of service and community service… A judge in Punjab could say Ghar Sevan at a gurdwara is community service; somebody would say reciting Hanuman Chalisa or Gita is community service… You should have defined community service, and it must be a service that really benefits the community as a whole.

Now that the laws are in force, what roadblocks do you see?

The first is a fundamental question that obviously the government is not answering. The general principle of law is that substantive laws have prospective effect, while procedural laws apply to pending cases. Now, the IPC is a substantive law, but the CrPC and Evidence Act are substantive as well as procedural. Which parts will apply prospectively and which parts retrospectively? Answer that.

The IPC cannot by definition apply to an offence committed before July 1. Because it’s only the law prevailing on the date of commission of that offence which is applicable. Article 20 clearly rules out applying the new law to a crime committed and completed before June 31. But there is serious debate about the CrPC and the Indian Evidence Act. That should be clarified somewhere in the law.

The law itself should have said that such and such sections will apply prospectively or retrospectively. Not that this is an insoluble problem… except that it will take a lot of time before the law is settled… Each High Court will decide and then the Supreme Court has to decide.

There are concerns around terror and organised crime incidents, covered by special laws in the IPC, being included as regular offences now.

The IPC has two different sections, one dealing with offences and the other with aggravated forms of offence. Organised crime is an aggravated form of offence. Therefore, there is no harm in having a special section for that, a special definition for that, and enhanced punishment for that.

On terrorism, there is already the UAPA. So long as there is a special law, why introduce it in the IPC when you are not repealing the UAPA? Similarly, for electoral offences, there is a special law (the Representation of the People’s Act, 1951, which currently penalises offences related to elections). It will only lead to confusion… (as to) which law do we apply?

And if there are minor differences in the language of the section, or procedure or punishment, it will only create confusion in the minds of the judge. When there is a special law already, you could have amended it and improved it, but don’t introduce it in the general law.

One of the things you said the new laws should have talked about is safeguarding against arbitrary arrests.

It is not something that the new laws have dealt with… What is the need for an arrest? The courts have applied it to even Section 45 of the PMLA (bail) now, and asked what the need was for an arrest. In fact, Chief Justice of India D Y Chandrachud said recently in a judgment that the power to arrest does not mean a necessity to arrest.

The magistrate must be asked to examine whether the procedure for arrest has been followed. Strictly. And to also ask the questions – Is it legal? Was it necessary?

Sixty-six per cent of the prisoners in India are undertrials. Why are we putting people behind bars in this digital age? When there is Aadhaar, electronic surveillance, a mobile in everybody’s hands. There can be an electronic device attached to a person.

Why do you need to put people in jail? Unless the mindset, the mentality is… since the bulk of the cases will end in acquittal, let me punish in pre-trial. This is pre-trial incarceration.

But much of this restrictive bail regime was introduced in the PMLA during the UPA government’s tenure.

The PMLA was passed in 2002, which people won’t remember at all. Who was in power in 2002? It was the Atal Bihari Vajpayee-led government which passed the law, and it received the President’s assent on January 17, 2003. Who was the Prime Minister in 2003? Vajpayee.

But it was notified when your government came to power in 2004.

The Financial Action Task Force (FATF) had been pestering us since 2002-2003. Yashwant Sinha (the NDA Finance Minister) and Vajpayee avoided the question until March 2004, and then we came to power. The FATF threatened us that if you don’t notify this law, we will exclude you. So we had no option but to notify it, and we notified it on July 1, 2005, a year after we came to power.

We notified it after making two significant amendments. Let’s understand the history of Section 45… For Section 45, we made a significant amendment in 2005 but it was amended again in 2018.

The same provision was reintroduced in 2018 after the Supreme Court had struck it down as unconstitutional in 2017.

Yes, after the Supreme Court struck it down. And then it was amended again in 2019. While we had made the offence non-cognizable (meaning the police could neither register an FIR nor investigate or effect arrests without the permission or directions from court), they again made it cognizable.

Therefore, there is a history to that. Don’t say that all this was passed by one man’s government… The matter is pending before the Supreme Court.

Secondly, they re-enacted it through a money Bill. The challenge against that is also pending. Anyway, we are still trying to resolve it.

Do the new criminal laws take this restrictive bail regime forward?

It is all because non-professional people have drafted the new laws. They were part-time members of a committee. It should have gone through the sieve of the Law Commission. The Law Commission has experienced people at various levels and they would have received it very carefully to see where the ambiguities and contradictions are.

Which major law in this country has been passed without referring it to the Law Commission? What is the Law Commission for? Is there no answer?

What are your views on the government’s argument that their motive behind the new laws is decolonialisation?

It is a completely hollow argument. Because you have retained an average 95% of the language of Thomas Babington Macaulay (author of the IPC) and Sir James Fitzjames Stephen (author of the Evidence Act). So what colonial law have you overthrown? You have posthumously paid a tribute to the colonial authors by retaining most of them.